United States v. Schultz

United States District Court, D. New Jersey

June 1, 2017

UNITED STATES OF AMERICA,v.JOHN SCHULTZ

ORDER

JOSEPH
H. RODRIGUEZ, United States District Judge

This
matter comes before the Court on motion of Defendant John
Schultz seeking an extension of time to file an appeal,
pursuant to Fed. R. App. P. 4(b)(4). The Court has considered
the written submissions and, for the reasons that follow,
denies the motion.

BACKGROUND

On
September 22, 2016, Defendant Schultz entered a plea of
guilty to a one count Information alleging conspiracy to
defraud the United States, in violation of 18 U.S.C.
§371. The plea agreement included a waiver stipulation
which states:

John Schultz knows that he has and, except as noted below in
this paragraph, voluntarily waives, the right to file any
appeal, any collateral attack, or any other writ or motion,
including but not limited to an appeal under 18 U.S.C. §
3742 or a motion under 28 U.S.C. § 2255, which
challenges the sentence imposed by the sentencing court if
that sentence falls within or below the Guidelines range that
results from the agreed total Guidelines offense level of 13.

Plea
Agreement, Dkt. No. 8, Schedule A, Stipulation No.7.

On
April 17, 2017, Defendant Schultz was sentenced to a term of
six months' imprisonment and a one-year term of
supervised release. Defendant's sentence falls within the
range that triggers application of the appellate waiver.
Judgment was entered commensurate with sentencing on April
17, 2017. As a result, pursuant to Fed. R. App. P.
4(b)(1)(A), Schultz had 14 days, or until May 1, 2017, to
file a notice of appeal from the judgment. Defendant Schultz
did not file a notice of appeal within the timeframe
contemplated by the Rule.

According
to the Government, the United States Probation Office mailed
Schultz a letter dated May 2, 2017, directing Schultz to
surrender to the Bureau of Prisons at F.C.I. Fort Dix on May
22, 2017. Then, on May 8, 2017, Defendant Schultz filed a
Motion to Substitute Attorney [Dkt. No. 11] and a Notice of
Motion for Reconsideration [Dkt. No. 12]. The Court granted
the motion to substitute attorney and new counsel Michael
Riley entered his appearance. The Notice of Motion for
Reconsideration appends no briefing or other papers in
connection with that filing. As a result, there is no Motion
for Reconsideration pending before the Court.

On May
12, 2017, Defendant filed a letter application seeking to
extend the time for self-surrender to the Bureau of Prisons
for a period of ninety days. Two exhibits accompanied the
letter request; both exhibits are letters which relate to Mr.
Schultz's health, one from Dr. Saia and one from Dr.
Dunn. Neither letter states that Mr. Schultz has any recent
acute medical problems. Instead, both letters restate his
past medical history, with one doctor noting that Mr. Schultz
looks "gaunt" and has lost weight.[1] The Government
objected to Mr. Schultz's request for an extension of the
self-surrender date and the Court held a hearing on May 16,
2017. During the hearing, Mr. Riley represented to the Court
that Defendant Schultz informed him, that morning, that he
was at the hospital and that Mr. Schultz sent Mr. Riley a
photograph of himself in a hospital gown.

Given
the fact that Mr. Schultz's request summarily sought a
ninety-day extension without offering any concrete basis for
the duration of the extension, the Court denied the request
without prejudice. The next day, despite the appellate waiver
provision of the Plea Agreement, Mr. Schultz filed both a
Notice of Appeal and the present Motion for Leave to File an
Appeal Late. In addition, Mr. Schultz submitted a letter
seeking an extension based upon the recommendation of Dr.
Saia, whom Schultz consulted following his May 16, 2017 visit
to the Atlantic City Regional Medical Center
("ARMC"). Dr. Saia's letter details the
symptoms that caused Mr. Schultz to visit the emergency room
at ARMC:

EKG apparently was unchanged from previous and no acute
changes were noted and troponin evaluation was negative. The
patient was advised admission but because of his impending
legal situation he thought they could not be admitted at this
time. He came directly to my office for evaluation.

Mr.
Schultz has not presented any documentation from ARMC related
to his emergency room visit. The Government agreed to extend
the report date to accommodate tests prescribed by Dr. Saia.
Against this backdrop, the Court considers the motion to
extend the time to appeal.

STANDARD
OF REVIEW

Untimely
appeals may be deemed timely upon satisfaction of the Fed. R.
App. ...

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